PEOPLE OF MI V JOHN ARTHUR HARRIS JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 25, 2009
Plaintiff-Appellee,
v
No. 283670
Ottawa Circuit Court
LC No. 06-030248-FH
JOHN ARTHUR HARRIS, JR.,
Defendant-Appellant.
Before: Zahra, P.J., and Whitbeck and M. J. Kelly, JJ.
PER CURIAM.
A jury convicted defendant identity theft, MCL 445.65. Defendant was sentenced as an
habitual offender, third offense, MCL 769.11, to 300 days’ imprisonment. He appeals as of
right. We affirm.
I. Basic Facts
In August 2005, Marivel Herrera-Brandle lost her purse, which contained her social
security card, at a bus stop. A few weeks later, defendant began employment with Besser
Lithibar, and filled out employment forms with the social security number assigned to HerreraBrandle, which ended with the final four digits of 3537. Before defendant had completed the
employment forms, the human resource specialist at Besser Lithibar wrote down a social security
number that was orally recited by defendant, which ended with the final four digits of 2687. At
trial, defendant testified that he simply made mistakes. Specifically, he claimed to have written
down a social security number that was one digit off from his actual social security number. He
testified his social security number ended with 3531, and he further testified that the social
security number ending in 2687 belonged to his son.
II. Motion for Substitute Counsel
Defendant argues that the trial court abused its discretion when it denied defendant’s
motion for substitute counsel.
A. Standard of Review
“A trial court’s decision regarding substitution of counsel will not be disturbed absent an
abuse of discretion.” People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). The
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trial court abuses its discretion when it selects an outcome that falls outside the range of
reasonable and principled outcomes. People v Young, 276 Mich App 446, 448; 740 NW2d 347
(2007).
B. Analysis
An indigent defendant is guaranteed the right to counsel; however, he is
not entitled to have the attorney of his choice appointed simply by requesting that
the attorney originally appointed be replaced. Appointment of a substitute
counsel is warranted only upon a showing of good cause and where substitution
will not unreasonably disrupt the judicial process. Good cause exists where a
legitimate difference of opinion develops between a defendant and his appointed
counsel with regard to a fundamental trial tactic. [People v Mack, 190 Mich App
7, 14; 475 NW2d 830 (1991)].
Defendant contended in court that there was a breakdown in the relationship between him
and defense counsel because counsel did not subpoena child support records repeatedly
requested by defendant, failed to request a bond reduction hearing, and made discouraging
remarks to defendant. Defendant’s claim that the trial court abused its discretion primarily rests
on his complaint that counsel failed to subpoena certain records. The records apparently would
have established that defendant obtained his job through a program offered by child services.
Defendant claims this evidence would refute the prosecution’s theory that defendant used the
victim’s social security number to avoid paying child support. Although the alleged records
were never secured, defense counsel elicited through defendant’s testimony evidence that
defendant obtained his job through a program offered by child services and that child services
knew he worked at Besser Lithibar. Thus, defense counsel and defendant agreed on this
fundamental trial tactic. Accordingly, good cause did not exist to substitute counsel. Further,
there was no evidence presented below or on appeal that the alleged records existed. Thus
defendant’s claim must also be rejected as meritless. The trial court did not abuse its discretion
when it denied defendant’s motion for substitute counsel.
III. Adjournment
Defendant next argues that the trial court abused its discretion when it denied defendant’s
motion for an adjournment.
A. Standard of Review
The record demonstrates defendant never moved for an adjournment. Thus, defendant
must establish that a plain error existed requiring reversal. People v Carines, 460 Mich 750,
763-764; 597 NW2d 130 (1999).
B. Analysis
This Court considers five factors when it reviews a trial court’s decision to deny
defendant’s request for an adjournment in order to obtain new counsel: “(1) whether the
defendant is asserting a constitutional right, (2) whether the defendant has a legitimate reason for
asserting the right, such as a bona fide dispute with his attorney, (3) whether the defendant was
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negligent in asserting his right, (4) whether the defendant is merely attempting to delay trial, and
(5) whether the defendant demonstrated prejudice resulting from the trial court’s decision.”
People v Akins, 259 Mich App 545, 557; 675 NW2d 863 (2003), citing People v Echavarria, 233
Mich App 356, 369, 592 NW2d 737 (1999). Contrary to defendant’s claims, there was no
legitimate reason for an adjournment because the alleged breakdown in the attorney-client
relationship was insufficient to establish good cause for substitute counsel. Even if there was
good cause and a legitimate reason for an adjournment, i.e. to enable substitute counsel to get
ready for trial or to subpoena the records, defendant has not even discussed, much less shown
prejudice resulting from the trial court’s decision. Id. Thus, defendant failed to prove that plain
error occurred.
IV. Effective Assistance of Counsel
Defendant also argues that he was denied the effective assistance of counsel because
defense counsel failed to subpoena defendant’s child support records to refute the prosecution’s
theory defendant intentionally provided the incorrect social security number to avoid satisfying
his child support obligations.
A. Standard of Review
Our review is limited to errors apparent on the record. People v Knapp, 244 Mich App
361, 385; 624 NW2d 227 (2001). Whether defendant has been deprived of effective assistance
of counsel is a mixed question of fact and law. People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). “A judge first must find the facts, and then must decide whether those facts
constitute a violation of the defendant’s constitutional right to effective assistance of counsel.”
Id. Factual findings are reviewed for clear error, while constitutional determinations are
reviewed de novo. Id.
B. Analysis
To prevail on a claim of ineffective assistance of counsel, defendant must prove two
components: 1) deficient performance, and 2) prejudice. Strickland v Washington, 466 US 668,
687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Butler, 193 Mich App 63, 66-67; 483
NW2d 430 (1992), lv den 440 Mich 881 (1992). To satisfy the first component, defendant must
show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, supra at 687. In other words,
defense counsel’s conduct must fall below an objective standard of reasonableness. Id. at 688.
The second component requires the defendant to show “the existence of a reasonable probability
that, but for the counsel’s error, the result of the proceeding would have been different.” People
v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Defendant must satisfy both components
to prevail. Id. at 599-600. In deciding the issue, “this Court neither substitutes its judgment for
that of counsel regarding matters of trial strategy, nor makes an assessment of counsel’s
competence with the benefit of hindsight.” People v Matuszak, 263 Mich App 42, 58; 687
NW2d 342 (2004).
“A defendant is entitled to have his counsel prepare, investigate, and present all
substantial defenses.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). “A
substantial defense is one that might have made a difference in the outcome of the trial.” Id.
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“Decisions regarding what evidence to present and whether to call or question witnesses are
presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76-77; 601 NW2d
887 (1999).
Defendant argues defense counsel was ineffective in failing to subpoena records
indicating that child support services was aware that he was employed at Besser Lithibar. Again,
nothing in the lower court record supports defendant’s claim that records exist indicating that he
landed the job through a program offered by child support services. Thus, defendant has not
shown that “the result of the proceeding would have been different.” Carbin, supra. Further, as
mentioned, the record indicates that defense counsel presented defendant’s own testimony to
refute the prosecution’s theory and argued during closing argument that defendant could not
avoid paying child support by simply using a different social security number. Because defense
counsel presented evidence that rebutted the prosecution’s theory and because defense counsel
presented a valid mistake defense, defendant is unable to demonstrate that, but for counsel’s
conduct, the outcome of trial would have been different. Defendant has not shown that he was
deprived of the effective assistance of counsel. Carbin, supra at 600; People v Dixon, 263 Mich
App 393, 398; 688 NW2d 308 (2004).
V. Sufficiency of the Evidence
Defendant also argues that the prosecution did not present sufficient evidence to prove he
provided a false social security number in order to obtain employment.
A. Standard of Review
“A claim of insufficient evidence is reviewed de novo, in a light most favorable to the
prosecution, to determine whether the evidence would justify a rational jury’s finding that the
defendant was guilty beyond a reasonable doubt.” People v McGhee, 268 Mich App 600, 622;
709 NW2d 595 (2005).
B. Analysis
In the present case, defendant was found guilty of identify theft, MCL 445.65. This
statute provides, in relevant part, that “a person shall not . . .with intent to defraud or violate the
law, use or attempt to use the personal identifying information of another person” to obtain
employment. MCL 445.65.
At trial, evidence established that defendant was required by law and by Besser Lithibar
to fill out employment forms, including state and federal tax forms, which required a social
security number. Because Klungle was required by law to collect defendant’s social security
number to employ defendant and because defendant provided a false social security number, the
evidence was sufficient for a rational juror to conclude beyond a reasonable doubt that defendant
was guilty of using the personal identifying information of another person to obtain employment.
McGhee, supra at 622.
Defendant further maintains that there was insufficient evidence to prove that defendant
provided another person’s social security number in order to commit an unlawful act, i.e. to
avoid paying child support. A person cannot with the “intent to defraud or violate the law” use
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“the personal identifying information of another person to . . . commit another unlawful act.”
MCL 445.65. The plain language of MCL 445.65, however, requires only that the prosecution
establish either that defendant used the personal identifying information of another to obtain
employment or commit an unlawful act. The record reveals that the prosecution only argued that
defendant attempted to obtain employment with the false information and that the trial court’s
jury instructions indicate that this was the only element put forth for the jury’s consideration.
The record does not support defendant’s claim that the prosecution presented and the jury
considered evidence regarding whether he committed an unlawful act. Thus, defendant is not
entitled to relief on the basis of this argument.
Affirmed.
/s/ Brian K. Zahra
/s/ William C. Whitbeck
/s/ Michael J. Kelly
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